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01-02-2015, 08:29 AM
Press Release by the Law Firms of Charles H. Manh, P.C. and Morris & Stone, LLP. Represented Saigon Nho – The Little Saigon News and its owner and publisher, Hoang Duoc Thao

Freedom of Speech and Freedom of Press disregarded in Orange County Court

In July 28, 2012, Hoang Duoc Thao, writing under the pen name Dao Nuong, published an article in the Saigon Nho newspaper that explored the ownership of another paper, the Nguoi Viet News. The article was a humorous and satirical opinion piece, that made references to fictional martial arts sects and poked fun at Nguoi Viet News for its revolving door of publishers, which changes every time that paper publishes an article that the community perceives as pro-communist.

Nguoi Viet News had published a letter, purportedly from a reader named Son Hao, that was admittedly pro-communist. During a press conference held to apologize for the letter, the latest publisher of Nguoi Viet News, in response to a question about who owned the newspaper, had stated that the paper was owned by the employees pursuant to an employee stock ownership plan. Thao’s article explored that claim.

In response to the article she wrote, the Nguoi Viet News, its CEO and the Assistant to the CEO sued for defamation. The paper asserted that the article was defamatory because, among other things, it falsely claimed that the paper was owned by the CEO, and that the Assistant to the CEO was not qualified to run the paper.

On December 30, 2014, a jury in the Orange County Superior Court awarded Plaintiffs $3 million in damages, and $1.5 million in punitive damages. Saigon Nho and its owner and publisher, Hoang Duoc Thao, were represented by the Law Firm of Charles H. Manh, P.C. and Morris & Stone, LLP.

“The trial can only be described as surreal. At the commencement of the action, the judge stated that he was not familiar with defamation law, and that became very apparent during pre-trial motions and trial”, Aaron Morris said.

“Because of the judge’s erroneous rulings, the jury was able to award damages, even though no evidence of any damages was ever presented or proven. Incredibly, the jury was instructed that they ‘must’ award damages, even though the plaintiffs failed to show that a single person had ever read the article in question, or that if anyone did read the article, they interpreted in the tortured manner that plaintiffs claim made it defamatory,” Morris said.

“In 25 years of practice, I’ve only witnessed this once before, where you just cannot get the judge to understand the many legal issues that come into play in a defamation case. All you can do is ride it out to the bitter end and get the verdict thrown out on appeal, but it’s a shame that the matter can’t be decided correctly in the first instance.”

Morris summarized the errors in the case as follows.

The case was about a single article published by the Saigon Nho newspaper on July 28, 2012. Plaintiffs had wanted to admit other articles and even videos from unknown sources, but a prior judge had concluded that they would not be admitted because they had no relevance. But when the case was transferred to different trial judge, over the strenuous objections of defense counsel, the new judge overruled the other judge and allowed other articles and even the videos to come in as evidence.

Thao, who fled South Vietnam after the 1975 fall of that country to the communists, is staunchly anti-communist. The videos were of events that occurred a year or more after the July 28, 2012 article was published, and the videos were of events that occurred a year or more after the July 28, 2012 article was published, and was maliciously misrepresented what actually happened. As the plaintiff made believe that my client is seen calling for a boycott of the Nguoi Viet News because of actions that were seen as pro-communist, such as publishing a picture of the South Vietnam flag in a washbasin, and publishing the pro-communist Son Hao letter, my client was actually questioning the presence of Nguoi Viet News at the banquet since the host as well as many attended guests were those signed up to the protest letter against Nguoi Viet News that Little Saigon News was asked to published. Nguoi Viet News were asked to leave the event even after my client had left the event. It is worth noting as well that the defendant was not given the chance to present the uncut, unedit version of the video in its defense. Words and videos taking out of context no longer reflect the real meaning.

She is not alone in these views. The Nguoi Viet News has been picketed on a regular basis since at least 2008, and many community organizations have called for the boycott of the paper. But Plaintiffs used the videos to argue that Thao is trying to put Nguoi Viet News out of business, and that those videos show that what she really meant by her article is that Nguoi Viet News is “owned by Vietnamese communists.” It was no surprise that the jurors could not separate the article that was the basis of the action from all the extraneous and irrelevant evidence that was permitted.

During the action, plaintiffs had conceded and stipulated that they had not suffered any “special damages”, or at least were not going to seek those damages. Special damages include such items as loss of profits; any damages to a business that would naturally flow from defamatory statements. In keeping with their stipulation, Plaintiffs presented no evidence of any special damages, nor did they prove a single item of any other sort of actual monetary damages.

However, during closing arguments, counsel for plaintiffs argued loss of profits and sought damages on that basis. When defense counsel objected, the court overruled the objection and allowed the argument for special damages to continue. Conversely, during defense counsel’s closing argument, when he tried to explain to the jury that they could not award any loss of profits because the plaintiffs had stipulated that they were not seeking special damages, the court sustained an objection and would not permit that argument. The jurors were thus left with the understanding that they could award damages for loss of profits that had never been shown and which plaintiffs agreed they would not seek.

Compounding the problem, the judge rewrote the standard jury instruction on damages. There are two types of damages in a defamation action -- actual and assumed. Actual damages, such as loss of profits, must be proven. But if all the elements of defamation are proven, the jury is permitted to award “assumed damages” for loss of reputation, even with no evidence of a specific dollar amount. It’s akin to pain and suffering in a personal injury action. A person or company’s reputation is assumed to have value, and if that reputation is injured, then the jury can assign a value to that loss. The jury is instructed, “you must award at least a nominal sum, such as one dollar.”

However, assumed damages only come into play if the plaintiff is unable to show actual damages. The jury instruction published by the Judicial Council of California specifically states assumed damages can only be awarded if the jury finds no actual damages. Inexplicably, at the request of Plaintiffs’ counsel, the judge rewrote the accepted jury instruction and verdict form, so that after finding actual damages, the jurors were told that they must also award presumed damages.

The end result was that the jurors were told they could award actual damages for loss of profits that were never shown, and on top of that were required to also award assumed damages.

“And damages only became an issue because the court stripped the defense of one of the primary defenses in a defamation case; opinion.” Morris added. “It is defamation 101 that a defendant cannot be liable for defamation for stating an opinion. Thao had opined that the Assistant to the CEO was not qualified to “operate the paper” because she had no journalistic background. In Thao’s opinion, someone who runs a paper should have experience and skills in reporting and editing. However, the judge refused to instruct the jury on opinion versus fact, stating that he could not see how someone’s qualifications to perform a job could be a matter of opinion.”

“This was doubly surreal, because the Assistant to the CEO testified that she does not operate the newspaper. Thus, Ms. Thao was found liable for offering the opinion that the Plaintiff was not qualified to perform a job she does not even perform.”

“In my opinion, this was just an effort by the Nguoi Viet News to put the competition out of business.” Morris stated. “They demanded 20 million to settle the case, and asked the jury for a total of $13 million in damages during the trial. An award anywhere near those numbers would have put the small Vietnamese newspaper out of business. But the paper will continue to operate, business as usual, and the verdict will undoubtedly be reversed on appeal.”